In this blog we’ve talked before about the vexed question of whether free and open source software (FOSS) licences should be primarily considered as contracts or bare licences. A useful tool for considering this question (in the US at least) became available today in the form of a decision by the US Federal Circuit Court of Appeals (pdf). To briefly sketch the complex background to this decision, Robert Jacobsen, one of the authors of the JMRI Project – a set of java tools for controlling model trains – tried to get an injunction in the California court against Matthew Katzer, an owner of a model train software business for infringement of copyright. The entire vexed and ugly history of the dispute can be read on the JMRI project Sourceforge page; it includes accusations of patent infringement, libel, unfair competition and price-fixing. Our concern here though is just with the copyright claim. Jacobsen had asked the California court to stop Katzer ever again distributing JNRI code without copyright notices (Katzer admitted doing so but had already pulled the distribution by the time the court came to consider the question).
The California court had refused to grant an injunction on the basis that the Artistic License (under which JMRI is distributed) was in their view a complete copyright licence, permitting the licensee to exercise all rights usually reserved to the copyright owner. While the court recognised that the Artistic License included some statements about what a licensee must do in order to obtain these rights (things like keeping copyright statements intact), it characterised these as essentially contractual responsibilities, promises (or ‘covenants’ ) made by the licensee in order to obtain a complete copyright licence. As such, the California district court found, Jacobsen might have a claim in contract law, but could not argue that his copyright had been infringed upon.
This decision was an extremely unpleasant shock for the public licensing community at large. If applied as a general principle across all public licences such as Creative Commons, open source and free software varieties, it would have catastrophic effects, at least in the US. “Why?” you might ask “Surely as long as you can take legal action in some form then the licensed materials are still protected?” There are a couple of answers to that. Firstly, suing for breach of contract is more complex and expensive than seeking injunction for infringement of copyright. Contract law varies alarmingly between countries, while copyright law is fairly standard thanks to international treaties like the Berne Convention. Secondly, the normal remedy granted for breach of contract is financial damages, generally calculated according to the economic loss suffered by the plaintiff. In the case of publicly licensed software or content, it could be hard to make an argument for significant damages, and as a result their stipulations may become widely ignored.
Jacobsen appealed this decision to the Federal Circuit. A posse of public-licensing superstars (Wikimedia, Creative Commons, the Linux Foundation, the Perl Foundation, the Open Source Initiative, the Software Freedom Law Center) submitted a joint Amicus brief (pdf) to the appeal court, which makes interesting reading. Their argument was that the district court had made a mistake when they characterised the Artistic License as a complete copyright licence with contractual riders. Instead, the super-posse argued, it was a limited copyright licence, granting some rights under copyright under certain limited circumstances (such as the licensee behaving themselves and sticking to the conditions). They also argued that the district court had failed to understand the precedents that they cited (including a case in which American Monty Python star Terry Gilliam had succeeded in stopping US television company ABC editing old Python shows in ways that their licence from the BBC did not allow). The amicus brief is also noteworthy for its continual stressing of the innovatory power of public licensing, its ability to facilitate contribution from anyone and assessment by all. This could be read as a counter argument to the oft-quoted dubious accusations that public licensing is in fact non-innovatory, devalues the effort needed to create copyright material and encourages plagiarism.
The appeal court’s decision (pdf) agreed with Jacobsen (and the super-posse). Rather than being a complete copyright licence with accompanying covenants, the appellate court ruled, Artistic Licence was a grant of certain rights under copyright subject to certain conditions. If you did not abide by the conditions, you didn’t get the grant. The decision also praised the principle of public licensing and rubbishes claims that public licensors suffered no economic loss if licensees broke their imposed conditions:
Open source licensing has become a widely used method of creative collaboration that serves to advance the arts and sciences in a manner and at a pace that few could have imagined just a few decades ago. For example, the Massachusetts Institute of Technology (MIT) uses a Creative Commons public license for an OpenCourseWare project that licenses all 1800 MIT courses. Other public licenses support the GNU/Linux operating system, the Perl programming language, the Apache web server programs, the Firefox web browser, and a collaborative web-based encyclopedia called Wikipedia. Creative Commons notes that, by some estimates, there are close to 100,000,000 works licensed under various Creative Commons licenses. The Wikimedia Foundation, another of the amici curiae, estimates that the Wikipedia website has more than 75,000 active contributors working on some 9,000,000 articles in more than 250 languages.
Open Source software projects invite computer programmers from around the world to view software code and make changes and improvements to it. Through such collaboration, software programs can often be written and debugged faster and at lower cost than if the copyright holder were required to do all of the work independently. In exchange and in consideration for this collaborative work, the copyright holder permits users to copy, modify and distribute the software code subject to conditions that serve to protect downstream users and to keep the code accessible. By requiring that users copy and restate the license and attribution information, a copyright holder can ensure that recipients of the redistributed computer code know the identity of the owner as well as the scope of the license granted by the original owner. The Artistic License in this case also requires that changes to the computer code be tracked so that downstream users know what part of the computer code is the original code created by the copyright holder and what part has been newly added or altered by another collaborator.
Traditionally, copyright owners sold their copyrighted material in exchange for money. The lack of money changing hands in open source licensing should not be presumed to mean that there is no economic consideration, however. There are substantial benefits, including economic benefits, to the creation and distribution of copyrighted works under public licenses that range far beyond traditional license royalties. For example, program creators may generate market share for their programs by providing certain components free of charge. Similarly, a programmer or company may increase its national or international reputation by incubating open source projects. Improvement to a product can come rapidly and free of charge from an expert not even known to the copyright holder.
The case will now return to the California district court to be re-considered in the light of these findings.
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